F.I.F.A. – Camera di Risoluzione delle Controversie (2014-2015) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2014-2015) – labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 20 August 2014, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Taku Nomiya (Japan), member Theo van Seggelen (Netherlands), member on the claim presented by the player, Player A, country B, as Claimant against the club, Club C, country D as Respondent regarding an employment-related dispute arisen between the parties

F.I.F.A. - Camera di Risoluzione delle Controversie (2014-2015) - controversie di lavoro – ---------- F.I.F.A. - Dispute Resolution Chamber (2014-2015) - labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 20 August 2014, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Taku Nomiya (Japan), member Theo van Seggelen (Netherlands), member on the claim presented by the player, Player A, country B, as Claimant against the club, Club C, country D as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 12 November 2011, the player from country B, Player A (hereinafter: the Claimant), lodged a complaint in front of FIFA against the club from country D, Club C (hereinafter: the Respondent) for breach of the employment contract (hereinafter: the English contract) dated 27 June 2011 and allegedly concluded between the parties on 6 July 2011. 2. In this respect, the Claimant provided a copy of an employment contract drafted in English, with the Respondent’s letterhead and only signed by himself. However, the Claimant claims to have never been provided with a duly signed copy of the alleged employment contract in spite of having undertaken every possible measure within his capabilities. 3. The Claimant sustains that the contract allegedly concluded with the Respondent on 27 June 2011 was valid from 6 July 2011 until 30 June 2012 and provided for a total net remuneration of USD 165,000; of which USD 60,000 was to be paid as a signing-on fee, USD 65,000 in ten equal monthly installments of USD 6,500 (“10 months from 01.07.2011”) and USD 40,000 at the end of the season, under the conditional obligation that the Claimant takes part in 70% of all the Respondent?s official matches. In addition, the Claimant was apparently also entitled to four “round trip economy class air tickets for [him] and his family (Country B-Country D-Country B)”. 4. In light of the foregoing, the Claimant requests to be awarded the following amounts: 1) Outstanding salary: USD 66,500 net - USD 60,000 corresponding to the signing-on fee; - USD 6,500 corresponding to his salary for July 2011. 2) Compensation: USD 68,500 net - USD 10,000 corresponding to the benefits in kind granted for the season 2011-12 (accommodation and four round air tickets); - USD 58,500 (USD 98,500 - USD 40,000 as remuneration with his new club, Club E, for the season 2011-12). 5. According to the Claimant, by means of a correspondence dated 4 August 2011 but apparently received on 8 August 2011, the Respondent unilaterally terminated the employment contract without just cause. 6. Furthermore, and in reference to the process for delivery of the International Transfer Certificate (ITC), the Claimant sustains that the application for the registration of a professional must be submitted together with a copy of the player?s contract, thus implying that if the ITC was issued in favour of the Respondent, then there must have been an employment contract signed previously by the parties. 7. Moreover, the Claimant refers to the termination letter dated 4 August 2011, issued by the Respondent (cf. point 5 above) and maintains that if the Respondent notified the Claimant of a contract termination, this can only imply that a contract as such, had effectively been concluded between the parties. In addition, the Claimant also assures that no mutual agreement of termination had ever been agreed with the Respondent and as a result is holding the Respondent responsible for the unilateral termination of the contract without just cause. 8. In spite of having been invited to do so, the Respondent did not present any reply to the above-mentioned player?s claim. 9. On 31 October 2013, the FIFA Dispute Resolution Chamber rendered a decision enjoining the Respondent to provide FIFA with a copy of the employment contract concluded with the Claimant. 10. On 13 December 2013, the Respondent provided FIFA with an English version of an employment contract concluded with the Claimant and bearing the letterhead of the Professional Football League of country D (hereinafter: the PFL contract). The aforementioned copy indicates that the contract at hand was apparently signed on 30 July 2011, was valid as of 15 February 2011 until 30 June 2012 and that the Claimant was entitled to receive a monthly salary of 3,000 (approx. USD 3,821). 11. In his final comments in relation to the contract presented by the Respondent, the Claimant argues that the date of signature and its duration are false. According to him, the contract cannot have been signed after the delivery of the ITC, i.e. 7 July 2011, since it is a prerequisite to any request for an ITC. Moreover, the Claimant points out that it would be incoherent to sign a contract on 30 July 2011 and set 15 February 2011 as the starting date for the execution. 12. Additionally, the Claimant questions why anyone would sign a contract at a later date for half of its initially agreed monthly remuneration. In this respect, the Claimant clarifies that the contract at hand is just the standard contract provided by the professional football league of country D (PFL) and used by all clubs from country D in order to register players at the federation. According to the Claimant, the remuneration contained in the PFL contract only represents the minimal interprofessional wage; however this wage can be increased by means of additional agreements (“additions”) such as the contract dated 27 June 2011. In this respect, the Claimant makes reference to art. 16.2 of the PFL contract, in accordance with which such additions must be considered as an integral part of the latter. 13. In spite of having been invited to do so, the Respondent did not present any comments on the Claimant’s final position. 14. On 30 August 2011, the Claimant concluded an employment contract with the club from country B, Club E, valid as from the date of signature until 29 August 2014. According to said contract, the Claimant was entitled to a monthly salary of convertible mark 2,000 (approx. USD 1,483) and to a signing-on fee of 40,000 (approx. USD 29,665), 20,000 to be paid on 12 September 2011 and 20,000 to be paid on 20 January 2012, respectively. 15. Within the scope of Club E’s transfer instruction entered into the TMS for the registration of the Claimant, it uploaded the Respondent’s statement dated 4 August 2011 as evidence of the mutual termination of the contract. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter referred to as the DRC or the Chamber) analysed whether it was competent to deal with the matter at stake. In this respect, it took note that the present matter was submitted to FIFA on 12 November 2011. Consequently, the 2008 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the 2008 and 2012 edition of the Procedural Rules). 2. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2014), the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a player from country B and an club from country D. 3. Furthermore, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, the Chamber confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions 2010 and 2012), and considering that the claim was lodged on 12 November 2011, the 2010 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance. 4. The competence of the DRC and the applicable regulations having been established, the Chamber entered into the matter of examining which document should be considered as the valid and binding legal document at the basis of the present employment relationship, as the parties had divergent positions in this regard. 5. In this context, the members of the Chamber noted that, on the one hand, the Claimant insists on the existence of a valid and binding employment contract between the parties dated 26 June 2011, drafted in English on paper bearing the club’s letterhead, for a duration as from 6 July 2011 until 30 June 2012 establishing inter alia remuneration in the amount of USD 165,000 for the season. The Claimant in this respect provided a copy of said contract, bearing his signature only. On the other hand, the Respondent submitted a contract drafted in the language of country D and signed by both the Claimant and the Respondent, which, according to the translation provided, was signed on 30 July 2011 and was valid as of 15 February 2011 until 30 June 2012. Said contract provides for a monthly salary of 3,000. 6. At this point, the DRC deemed it appropriate to remind the parties of the legal principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right from an alleged fact shall carry the respective burden of proof. In the present case, this means that the Claimant bore the burden of demonstrating the validity of the English contract for the parties, in view of the fact that such contract contained the signature of the Claimant only. P 7. In order to prove his allegations concerning the validity of the English contract, the Claimant outlined the inconsistencies of the PFL contract, in particular in relation to its date of signature and dates of validity. In this respect, the Chamber first of all deemed fit to point out that the above-mentioned inconsistencies appear to rather result from mistakes in the translation. 8. The Claimant further asserts that the contract from country D is just the standard contract provided by the professional football league of country D (PFL) and used by all clubs from country D in order to register players at the federation. According to the Claimant, the remuneration contained in the contract from country D only represents the minimal interprofessional wage; however this wage can be increased by means of additional agreements such as the contract dated 27 June 2011. In this regard, the members of the Chamber pointed out that the fact that additional agreements might be signed does not mean that additional agreements were actually signed. 9. In continuation, the Dispute Resolution Chamber deemed important to highlight that, in order to be considered valid and binding, an employment contract should necessarily contain the signature of both the employer and the employee, as the expression of their mutual agreement to a specific set of terms and conditions upon which their legal relationship is based. 10. In view of the aforementioned, the Chamber deemed that the Claimant was not able to provide substantial evidence of the existence of a valid employment contract drafted in English between the parties and, consequently, the PFL contract was to be considered the only legal document at the basis of the contractual relationship between the Claimant and the Respondent. Thus, the Chamber concluded that it was not possible for the DRC to enter the question of whether or not the English contract had been violated by either party, since there was no evidence of its validity and that, consequently, the Claimant’s claims based on the English contract would not be analysed. This is, no further reference to the English contract will be made and any reference to the contract between the parties will relate to the contract from country D. 11. That having been established, the Chamber entered into the substance of the matter. In doing so, the Chamber started by acknowledging the facts of the case as well as the documents contained in the file. However, the Chamber emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence which it considered pertinent for the assessment of the matter at hand. 12. In continuation, the members of the Chamber noted that the Claimant lodged a claim against the Respondent maintaining that the latter had terminated the employment contract unilaterally and without just cause on 4 August 2011. In this respect, the Claimant outlines that the Respondent failed to pay him any remuneration as of the signature of the contract until the termination. Consequently, the Claimant asks to be awarded his outstanding dues as well as the payment of compensation for breach of the employment contract. 13. The Respondent, for its part, failed to present its response to the claim of the Claimant, in spite of having been invited to do so. Consequently, the Chamber deemed that the Respondent had renounced to its right of defence and, thus, had accepted the allegations of the Claimant. 14. As a consequence of the aforementioned consideration, the members of the Chamber concurred that, in accordance with art. 9 par. 3 of the Procedural Rules, a decision shall be taken upon the basis of the documents already on file, in other words, upon the statements and documents presented by the Claimant. 15. On account of the above, the Chamber decided that the Respondent had no just cause to unilaterally terminate the employment relationship between the Claimant and the Respondent and, therefore, concluded that the Respondent had terminated the employment contract without just cause on 4 August 2011 and that, consequently, the Respondent is to be held liable for the early termination of the employment contact without just cause. 16. Bearing in mind the previous considerations, the Chamber went on to deal with the consequences of the early termination of the employment contract without just cause by the Respondent. 17. First of all, the members of the Chamber concurred that the Respondent must fulfill its obligations as per the employment contract up until the date of termination of the contract in accordance with the general legal principle of “pacta sunt servanda”. Consequently, the Chamber decided that the Respondent is liable to pay to the Claimant the remuneration that was outstanding at the time of the termination i.e. the amount of 3,000, consisting of the monthly salary for July 2011. 18. In continuation, the Chamber decided that, taking into consideration art. 17 par. 1 of the Regulations, the Claimant is entitled to receive from the Respondent compensation for breach of contract in addition to any outstanding salaries on the basis of the relevant employment contract. 19. In this context, the Chamber outlined that, in accordance with said provision, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including, in particular, the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, and depending on whether the contractual breach falls within the protected period. 20. In application of the relevant provision, the Chamber held that it first of all had to clarify whether the pertinent employment contract contained any clause, by means of which the parties had beforehand agreed upon a compensation payable by the contractual parties in the event of breach of contract. In this regard, the Chamber established that no such compensation clause was included in the employment contract at the basis of the matter at stake. 21. Subsequently, and in order to evaluate the compensation to be paid by the Respondent, the members of the Chamber took into account the remuneration due to the Claimant in accordance with the employment contract as well as the time remaining on the same contract, along with the professional situation of the Claimant after the early termination occurred. In this respect, the Chamber pointed out that at the time of the termination of the employment contract on 4 August 2011, the contract would run for another 11 months. Consequently, taking into account the financial terms of the contract the Chamber concluded that the remaining value of the contract as from its early termination by the Respondent until the regular expiry of the contract amounts to 33,000 (USD 42,031) and that such amount shall serve as the basis for the final determination of the amount of compensation for breach of contract. 22. In continuation, the Chamber verified as to whether the Claimant had signed an employment contract with another club during the relevant period of time, by means of which he would have been enabled to reduce his loss of income. According to the constant practice of the DRC, such remuneration under a new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract in connection with the player’s general obligation to mitigate his damages. 23. Indeed, on 30 August 2011, the Claimant concluded an employment contract with the club from country B, Club E, valid as from the date of signature until 29 August 2014, according to which the Claimant was entitled to a monthly salary of convertible mark 2,000 (approx. USD 1,483) and to a signing-on fee due during the 2011-12 season of 40,000 (approx. USD 29,665). Consequently, the Chamber established that the value of the new employment contract concluded between the Claimant and the new club for the period as from August 2011 until 30 June 2012 amounted to 60,000 (USD 44,500). 24. In accordance with the constant practice of the Dispute Resolution Chamber and the general obligation of the player to mitigate his damages, such remuneration under the new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract. 25. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Dispute Resolution Chamber decided that, even though the Respondent is considered liable for the breach of the relevant employment contract, the Claimant did not suffer any financial loss from the violation of the contractual obligations by the Respondent and, therefore, the Chamber decided that there is no amount that should be awarded to the Claimant as compensation for breach of contract in the matter at hand. 26. In continuation, the Chamber focused its attention on the further consequences of the breach of contract in question and, in this respect, addressed the question of sporting sanctions in accordance with art. 17 par. 4 of the Regulations. The cited provision stipulates inter alia that, in addition to the obligation to pay compensation, sporting sanctions shall be imposed on a club found to be in breach of contract during the protected period. 27. Subsequently, the members of the Chamber referred to item 7 of the “Definitions” section of the Regulations, which stipulates, inter alia, that the protected period shall last “for three entire seasons or three years, whichever comes first, following the entry into force of a contract, where such contract is concluded prior to the 28th birthday of the professional, or two entire seasons or two years, whichever comes first, following the entry into force of a contract, where such contract is concluded after the 28th birthday of the professional”. In this respect, the Chamber took note that the breach of the employment contract by the Respondent had occurred on 4 August 2011, i.e. just 1 month following the entry into force of the contract at the basis of the dispute. Therefore, the Chamber concluded that, irrespective of the Claimant’s age, such breach of contract by the Respondent had occurred within the protected period. 28. As a result, by virtue of art. 17 par. 4 of the Regulations and considering that the Respondent terminated the contract with the Claimant without any justification and consequently was found in breach of the employment contract without just cause, the Chamber decided that the Respondent shall be banned from registering any new players, either nationally or internationally, for the two next entire and consecutive registration periods following the notification of the present decision. In this regard, the Chamber emphasised that apart from the Respondent having clearly acted in breach of the contract within the protected period in the present matter, the Respondent had also on several occasions in the recent past been held liable by the Chamber for the early termination of the employment contracts with the players Player F (case. ref. nr. xxxxxxxx; decided on 12 June 2012), Player G (case ref. nr. xxxxxxxxx; decided on 17 August 2012), Player H (case ref. nr. xxxxxxx; decided on 30 August 2013) and Player I (case ref. nr. xxxxxxxx; decided on 30 August 2013). 29. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected. ***** III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player A, is partially accepted. 2. The Respondent, Club C, has to pay to the Claimant, within 30 days as from the date of notification of this decision the amount of 3,000. 3. In the event that the aforementioned amount is not paid within the stated time limit, interest at the rate of 5% p.a. will apply as of the expiry of the stipulated time limits and the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for its consideration and a formal decision. 4. Any further request filed by the Claimant is rejected 5. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittance is to be made and to notify the Dispute Resolution Chamber of every payment received. 6. The Respondent shall be banned from registering any new players, either nationally or internationally, for the two next entire and consecutive registration periods following the notification of the present decision. ***** Note relating to the motivated decision (legal remedy): According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS, a copy of which we enclose hereto. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives). The full address and contact numbers of the CAS are the following: Court of Arbitration for Sport Avenue de Beaumont 2 1012 Lausanne Switzerland Tel: +41 21 613 50 00 / Fax: +41 21 613 50 01 e-mail: info@tas-cas.org www.tas-cas.org For the Dispute Resolution Chamber: Jérôme Valcke Secretary General Encl. CAS directives